Citation Nr: 1819873
Decision Date: 04/05/18 Archive Date: 04/16/18
DOCKET NO. 12-25 568 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts
THE ISSUE
Entitlement to service connection for a headache disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Erin J. Carroll, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Marine Corps from May 1967 to January 1971, including combat-related service in Vietnam.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Boston, Massachusetts.
The Veteran was afforded a hearing in October 2017. In January 2018, the Veteran was notified that the Veterans Law Judge who conducted the October 2017 hearing was no longer with the Board. The Veteran has waived his right to another Board hearing.
The issues of entitlement to service-disabled veterans insurance, as well as entitlement to service connection for a heart condition, an artery condition, and a hypertrophy condition have been raised by the record in November 2017 and March 2018 statements respectively, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for any appropriate action. 38 C.F.R. § 19.9(b) (2017).
FINDING OF FACT
Resolving any reasonable doubt in the Veteran's favor, his currently diagnosed headache disability is related to combat service.
CONCLUSION OF LAW
The criteria to establish service connection for a headache disability are met. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.304(d), (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran asserts that his currently diagnosed headache disability resulted from mortar attacks he experienced during active duty service while stationed in Vietnam.
The Veteran's service treatment records reveal that he sustained fragment wounds from incoming mortars in May 1968. A physical examination revealed fragment wounds to the left arm and right leg at that time.
In a private treatment letter dated in December 1971, Dr. C. W. noted the Veteran's complaints of headaches less than a year after separation from service.
The Veteran underwent a VA examination for his headaches in January 2017, during which he reported experiencing headaches for many years. He described his headache symptoms as similar to migraine headaches and they were also consistent with tension headaches. The examiner opined that the Veteran's headaches were less likely than not related to his head trauma. However, the examiner failed to provide a rationale in support of this conclusion, merely noting that the headaches appeared to be consistent with tension-related headaches. Thus, this opinion is afforded no probative value.
In June 2017, the Veteran reported that he been present for thousands of mortar explosions while he was stationed in Vietnam, and that he had experienced headaches since that time. See June 21, 2017 Report of General Information. Most recently, in October 2017, the Veteran testified that he experienced numerous headaches during service after his exposure to mortar attacks. See October 2017 Board Hearing Testimony p. 2-4.
Notably, in this case, the Veteran's DD-214 shows that the Veteran served during the Vietnam War as a field radio officer with the Marine Corps for which he received, among other awards, the National Defense Service Medal, a Purple Heart Medal, the Vietnam Service Medal with five stars, the Combat Action Ribbon, the Navy Achievement Medal with Combat "V," and the Republic of Vietnam Gallantry Cross Unit Citation with Palm.
Pursuant to 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d), for any Veteran who engaged in combat with the enemy, VA shall accept lay or other evidence as proof of a disease or injury being incurred or aggravated by such service, even if there is no official record of such incurrence, so long as the evidence is consistent with the circumstances of such service.
In view of these awards, and the circumstances described by the Veteran surrounding the numerous mortar attacks to which he was exposed, the Board finds that the Veteran is entitled to the combat presumption. Accordingly, the Board accepts as credible the Veteran's report of headaches that began during his combat service in Vietnam, as his assertions are consistent with the circumstances, conditions, and hardships of that service. 38 U.S.C. § 1154(b). As such, VA must presume the occurrence of the in-service headaches. Indeed, as noted above, the Veteran has consistently reported that he experienced frequent headaches during service, and the current medical evidence shows that the Veteran's head pain has been attributed to tension and migraine headaches.
The Board finds that the Veteran is both competent to report headache pain during and since serving in combat in Vietnam and that his account of having headaches since that time is credible. The Veteran's assertions regarding the onset of his headaches and the circumstances leading to such headaches fall squarely within the "combat presumption," contained at 38 C.F.R. § 3.304(d) and are the only probative evidence of record. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his headache disability became manifest during his combat service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012).
In light of his in-service experiences, the credible history of headaches in and since service, and the current diagnosis of a headache disability, the Board finds that service connection for headaches is warranted as being related to combat service.
ORDER
Entitlement to service connection for a headache disability is granted.
____________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs